Tampa's position leaves Australia with few options

KERRY O'BRIEN: And that is the view, certainly, from senior levels of the Indonesian parliament.

But where do we stand, legally?

Does Australia really bear sole responsibility as the Indonesians argue?

And whatever the legal niceties, what, in practical terms, are the possible solutions to the dilemma posed by that shipload of unwelcome humanity?

Mark Bannerman reports.

MARK BANNERMAN: Day four of the crisis and there she was -- state of the art freighter, loaded with a multimillion-dollar cargo.

But the 'Tampa' is not so much a ship anymore, but a massive floating question mark on a turbulent political and legal sea.

ASSOCIATE PROFESSOR DON ROTHWELL, FACULTY OF LAW, SYDNEY UNIVERSITY: Australia has acted within international law but it has taken a rather extreme position of the relevant international law.

DR MICHAEL WHITE: I think we've been in breach of our international obligations to this ship in failing to give it reasonable assistance.

MARK BANNERMAN: It's been clear since this crisis began that all sides have been searching for the legal high ground, hoping, it seems, the law would justify their position.

THORBJORN JAGLAND, NORWEGIAN FOREIGN MINISTER (LAST NIGHT): Australia's responsibility continues to exist because this is an Australian-led operation and when the Norwegian ship asks for assistance, they are obliged to give assistance to the Norwegian ship and allow the Norwegian ship into its territorial water.

MARK BANNERMAN: But the law of the sea is a loosely written document.

For their part, the Norwegians have been citing the international convention on search and rescue, which says: "Parties shall ensure that assistance be provided to any person in distress at sea.

They shall do so regardless of the nationality or status of such a person or the circumstances in which the person is found."

ASSOCIATE PROFESSOR DON ROTHWELL: Ultimately, I guess, and this is the point that the Norwegian government seems to have been making in the last 24 hours -- is that the Norwegians engaged in a humanitarian action, which mariners at sea will always engage in.

Irrespective of the law, this is the custom of the sea -- to go to the aid of persons in distress.

And that coastal states in the area of the search and rescue should then receive those people and deal with them accordingly.

MARK BANNERMAN: Don Rothwell is associate professor of law at Sydney University.

He's an expert in the law of the sea.

He believes that Australia had a moral obligation to receive the boat people.

But he concedes that, legally, it was also within its rights when he sent in the SAS to take control of the ship.

ASSOCIATE PROFESSOR DON ROTHWELL: Australia is, if you like, expanding the outer limits of what is acceptable under international law.

And one would have thought a country which prides itself as being a good international citizen should have taken a more reasoned response, given all the facts and circumstances here, given the fact that Australia assisted in coordinating the search and rescue effort, and taken a more reasonable approach under those circumstances.

MARK BANNERMAN: Others, though, feel the law has not only been stretched, but broken.

DR MICHAEL WHITE: The captain had every right to seek assistance from the coastal state, and in this circumstance that's Australia.

He has sought that assistance and it's been refused him.

We are in breach of our obligations in that regard.

MARK BANNERMAN: Of course, in an immediate sense, the argument might not be so much who was right yesterday, rather what is the realpolitik of this situation today.

The UN High Commission for Refugees has made it clear the people cannot stay on the ship.

RON REDMOND, UNHCR: So, in Geneva today we will be contacting the missions of Indonesia, Australia and New Zealand so we can get them together to sit down around the table and try to thrash out, you know, who can help to accept responsibility for these people.

MARK BANNERMAN: But conferences are one thing, solutions are another.

Norway, for one, will claim distance is a problem.

"Not good enough," says retired commodore Sam Bateman.

SAM BATEMAN, CENTRE FOR MARITIME POLICY, WOLLONGONG UNI: Norway has a clear responsibility also in terms of what happens to these people.

I mean, it's not an outlandish scenario, for example, to suggest that why shouldn't the ship take them to Singapore where there could be a nice Scandinavian Airlines 747 to fly them to Oslo.

DR GRAHAM THOM, REFUGEE COORDINATOR, AMNESTY INTERNATIONAL: The reality is, again, that Indonesia has not signed the refugee convention and Australia has signed the refugee convention.

We have stated we will protect people who are fleeing persecution.

MARK BANNERMAN: So this leaves Australia -- what are the options here?

SAM BATEMAN: One of our frigates, HMAS Anzac, is on its way.

That will give Australia more clout, more capacity on the spot.

The two options that are immediately apparent would be that Australian personnel with the appropriate skills -- and they would not be the SAS -- could actually take command of the ship, steam it out to the limits of the territorial sea, then leave the ship and leave the master in charge of his vessel.

MARK BANNERMAN: This, of course, is a legal option according to most of the people we've canvassed today, but it would incense the international community, who says Australia is the solution.

DR GRAHAM THOMS: This boat is now in Australian waters, it is under Australian control and as such these people should be entitled to seek asylum here.

The Australian Government cannot wind back the clock on this and say the boat should have gone this way or that way.

The fact is it's now in Australian waters and it should take responsibility for it.

MARK BANNERMAN: But that is advice John Howard does not want to take -- not only would it involve a huge loss of face, it would also do nothing to solve what he says is a much greater problem -- a never-ending flow of boat people.